The Outsider Perspective Issue 105

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Good Friday Morning!There have been audio tapes, impeachment papers for Rod Rosenstein, an avalanche of tweets, and other stories this week. Plus the ever lingering fallout from Helinski, or as one commentator put it this week: The stinky in Helinski. This week I’ll cover the strange story of Michael Cohen and his tapes, the impeachment articles against Rod Rosenstein, and a pro-gun rights case out of the 9th Circuit Court of Appeals. Links to follow.

But first, I’d like to announce my plans to start writing some pieces for Ricochet.com, a conservative website that’s building an incredible platform for conservative and libertarian podcasts. It’s a paid membership site, with varying levels. My first column was well received, and you can read it here: FiveThirtyEight’s anti-Catholic hit piece.

In that column, I write about a piece at FiveThirtyEight.com that laments the number of Catholic hospitals in rural areas. They specifically attack the idea of accommodating the religious beliefs of medical professionals. I sketch out a broad overview of the rich history in American law of accommodating those beliefs.

As President Donald Trump’s most recent nominee to the Supreme Court, Judge Brett Kavanaugh has been the target of numerous attacks from the left over the last several weeks. Most recently, the left has alleged that Kavanaugh would put Trump and the presidency “above the law” should he be confirmed as a justice.

It’s just the latest fever dream conspiracy theory among the #resistance set of the electorate — and it’s dead wrong: about the law, about Kavanaugh, and about reality.

The Supreme Court of Canada recently prevented a private Christian university from forming a law school, ruling that requiring each incoming student to sign a community covenant violated the Canadian constitution.

In reaching their 7-2 decision, the Canadian high court had to ignore precedent, the words in Canada’s Charter (their constitution), and concoct new authority from nothing — all in the name of social justice.

The bizarre story of Michael Cohen

It’s almost impossible to write about Michael Cohen, Trump’s former lawyer who helped arrange a payoff for stories involving Trump sleeping with porn stars. I say impossible because every few hours some new part of the story drops that makes the story stranger and stranger.

The new revelation this week was that Cohen had recordings made of his conversations with Trump. As Trump’s former lawyer, most of these should get covered by the attorney-client privilege, which only Trump can waive. Where things got interesting was first, Trump waived privilege on 12 of those tapes and released them to prosecutors.

Then, to top it off, Michael Cohen’s attorney released the audio to CNN of one of the tapes. The gist of that tape is explained by CNN below:

Cohen told Trump about his plans to set up a company and finance the purchase of the rights from American Media, which publishes the National Enquirer. The recording captures what appears to be a routine business conversation of several matters on their agenda. The audio is muddled and the meaning of Trump’s use of the word “cash” is disputed by the two sides.

“I need to open up a company for the transfer of all of that info regarding our friend David,” Cohen said in the recording, likely a reference to American Media head David Pecker.

When financing comes up again later in the conversation, Trump interrupts Cohen asking, “What financing?” according to the recording. When Cohen tells Trump, “We’ll have to pay,” Trump is heard saying “pay with cash” but the audio is muddled and it’s unclear whether he suggests paying with cash or not paying. Cohen says, “no, no” but it is not clear what is said next.

No payment was ever made from Trump, Rudy Giuliani, the President’s attorney, has said. Giuliani has previously acknowledged that the recorded discussion related to the buying the story rights.

The reason these payments ostensibly occur is to buy the story rights to one of the porn stars Trump allegedly slept with several years ago.

Cohen has gone from virtual silence to suddenly sounding as if he is ready to turn on the president at a moment’s notice. Gone are the days when Cohen sought to appear as close to Trump as possible; he said in an interview with ABC’s George Stephanopoulos last week that his family “and this country” have his “first loyalty.”

Soon, Cohen will split with his legal team at McDermott Will & Emery and have his defense guided by Guy Petrillo, a partner at Petrillo Klein & Boxer who has extensive experience in the Southern District of New York and is the kind of lawyer a person would choose if they were seeking to cut a deal with prosecutors, experts told Business Insider. Cohen has also brought on Lanny Davis, notable for his work as a lawyer and representative for President Bill Clinton during the Monica Lewinsky scandal.

Cohen has done everything but admit guilt in this process. His very public flip likely hurts his odds at getting a solid deal from prosecutors, who are likely to see him as impossible to control with this new legal strategy. It’s also noteworthy he’s chosen CNN to leak all this information to because that’s Trump’s primary object of ire.

Cohen has decided to contest his case in the press, which can only mean one thing: He wants something from Trump and believes a press shakedown is the only way to do it.

What I suspect Cohen wants is a pardon. And in exchange, he’ll repeat nice things about Trump.

That would bring a whole debate on whether or not a pardon is obstruction of justice or impeachable (no, and likely no).

Short of that, Cohen’s strategy doesn’t make much sense. He’s only ensuring less of a deal and more jail time otherwise.

The Rosenstein articles of impeachment are/were a joke

In the span of 24 hours, House Reps Mark Meadows and Jim Jordan offered up articles of impeachment against DOJ Deputy Attorney General, and Robert Mueller’s boss, Rod Rosenstein, and then walked that plan back after being told, in so many words, they were idiots.

Lawyer Jack Goldsmith went through in detail of how ridiculous each charge is in the articles of impeachment. There are factual errors, logical fallacies, and just poor legal reasoning.

In a tweet, Meadows said, “The DOJ has continued to hide information from Congress and repeatedly obstructed oversight–even defying multiple Congressional subpoenas.”

Even if you take that claim at face value, there’s no precedent for doing what Meadows did in the House. Obama AG Eric Holder was FAR more obstructionist with the GOP controlled House, and the most they did to him was a public censure.

Jordan is a member of the House Freedom Caucus, a sect of the GOP that’s more famed for attacking fellow conservatives than it is liberals. Jordan is no different. He’s a minority faction candidate, who most people hate, and wants to gin up populist support from the Trump section of the aisle to smooth his ascent to the Speaker role.

He’s also in the middle of a fight rebutting claims he knew and did nothing against a male sexual assault scandal at Ohio State.

In joining a trumped-up set of impeachment articles, he’s trying to make himself a darling of the right and Trump fans.

For what its worth, it seems like Trump is hinting towards Steve Scalise for the role, which complicates Jordan’s messy political play. Scalise, as you may recall, was shot on a Congressional baseball field last year.

In summary, everything about this impeachment ploy was a naked political gamble. There’s no substance. And it’s reasonable all this was done to further Jim Jordan’s legislative career.

9th Circuit rules in favor of open carry

In a decision that shocked me, because of the district, the 9th Circuit Court of Appeals, which encompasses California, Hawaii, and the bluest of blue states, ruled in favor of open carry rights under the Second Amendment. A three-judge panel ruled in favor of the plaintiffs in the case. Because while the Supreme Court has established the right to own and keep guns, the concept of open carry hasn’t been ruled on by SCOTUS.

Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. A right to “keep” arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to “keep” arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms “implies a corresponding right to acquire and maintain proficiency in their use”). The addition of a separate right to “bear” arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. See Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880) (“[T]o bear arms implies something more than mere keeping.”). Understanding “bear” to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between “keep” and “bear” to avoid rendering the latter guarantee as mere surplusage.

In short, the text of the Amendment, as interpreted by Heller and McDonald, points toward the conclusion that “bear” implies a right to carry firearms publicly for selfdefense.

They also went into the history and original meaning of the words in the Second Amendment. But for our purposes, the textual analysis is enough.

It’s very likely that the State of Hawaii, who had the law banning open carry, will appeal their decision for a full en banc hearing before the 9th Circuit, which means every judge on the circuit hears the matter. If that happens, I expect the plaintiffs to lose and appeal to the Supreme Court.

But for the moment, it’s a rare time when the 9th Circuit issues an opinion on gun rights that I mostly agree with in analysis and conclusion.

WASHINGTON — Even as they united behind journalist Kaitlan Collins after the Trump administration barred her from attending a press conference with the president, the White House press corps reportedly admitted Thursday that they wished their show of solidarity over a banned reporter could be for a better news organization than CNN. “Obviously, we’ll stand behind any news outlet that has its access suspended, but did it really have to be CNN?” said NBC News chief White House correspondent Hallie Jackson, echoing the sentiments of her colleagues who begrudgingly agreed that any move to infringe upon one reporter’s journalistic freedoms, even if it was someone from CNN, was an assault on the entire free press. “Although we’d much rather stand up for someone from, say, the New York Times, or C-SPAN, or, Christ, even The Hill, it’s important to inform the White House that blocking any news organization from a press event will not be tolerated. Journalists are here to ask tough questions and keep the public informed, and even if they represent a network that never does those things, a ban like this sets a grave precedent. Solidarity with—ugh—CNN.” At press time, CNN senior White House correspondent Jeff Zeleny issued a statement thanking the press corps for coming together to support holding the powerful accountable and also for whatever it is that CNN does.